Overtime And Its Effect On Child Support In Kentucky

August 31, 2017

In this blog, I devote regular space to common issues arising out of family court disputes in Kentucky, including family courts based in Louisville and LaGrange. As a family law attorney practicing in Louisville, Oldham County, and the surrounding areas I would be honored to represent you in your case.

 

Calculating child support is a common task in the practice of family law. One issue that arises frequently in child support cases is how to deal with a party who works overtime.

 

As a general rule, the more income attributable to a party, the greater that party’s child support obligation will likely be. Therefore, in cases where I represent a party working overtime, my job is to show the overtime wages are speculative, irregular, unpredictable, and/or subject to change. I try to do just the opposite when representing a person receiving child support in Kentucky.

 

NO. 2016-CA-001051-ME

Kentucky Court of Appeals

Marcum v. Marcum, unpublished opinion

Decided August 18, 2017

 

In this unpublished opinion, the Kentucky Court of Appeals reversed a trial court’s order that did not consider overtime income of a party in setting a child support order. The case provides a good overview of the law on overtime in child support cases with the primary point being that a person's future income can be presumed to be on par with recent income.

 

An excerpt from the case follows:

 

The trial court has broad discretion in modifying child support; accordingly, we will not disturb that decision unless the court abused its discretion. Snow v. Snow, 24 S.W.3d 668, 672 (Ky. App. 2000). “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

 

KRS 403.212(2)(a) defines “income” as “actual gross income of the parent if employed to full capacity . . . .” In Keplinger v. Keplinger, 839 S.W.2d 566 (Ky. App. 1992), this Court stated: KRS 403.212(2)(a) must be read as creating a

presumption that future income will be on a par with the worker's most recent experience. The party who wants the trial court to use a different income level in applying the child support guidelines bears the burden of

presenting evidence which would support the requested finding. Id. at 569 (internal footnote omitted).

 

In the case at bar, Owen testified he had been working overtime for at least three years. The undisputed evidence established Owen’s actual gross income for 2014 was $60,658, and his paystubs indicated he continued earning similar wages at the beginning of 2015. Despite the evidence of Owen’s most recent income, the trial court determined his income was uncertain and relied on Owen’s hourly wage to calculate gross income of $36,379.

 

We reiterate, “KRS 403.212(2)(a) must be read as creating a presumption that future income will be on a par with the worker's most recent experience.” Id. Consequently, we conclude the court’s determination of gross income constituted an abuse of discretion; accordingly, we reverse the Laurel Circuit Court’s order modifying child support and remand this matter for further proceedings consistent with this opinion.

 

Call Jason Dattilo, an experienced family law attorney practicing in family courts of Jefferson, Oldham, and the surrounding counties.

 

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